The Defence of Act of God (Vis Major)

Act of God

Act of God is a defence used in cases of torts when an event over which the defendant has no control over occurs and the damage is caused by the forces of nature. In such cases the defendant will not be liable in tort law for such inadvertent damage. Act of God or Vis Major or Force Majeure may be defined as circumstances which no human foresight can provide against any of which human prudence is not bound to recognize the possibility, and which when they do occur, therefore are calamities that do not involve the obligation of paying for the consequences that result from them. Black’s Law Dictionary defines an act of God as “An act occasioned exclusively by violence of nature without the interference of any human agency.” A natural necessity proceeding from physical causes alone without the intervention of man. It is an accident which could not have been occasioned by human agency but proceeded from physical causes alone.”When a defendant pleads act of God as an answer to liability, he may deny that he was at fault. Sometimes, however, the defendant, when he relies on this plea, denies causation. He may concede that he was negligent but contend that, even if he had taken reasonable care, the damage about which the plaintiff complains would still have occurred and hence he should not be held guilty for those damages. To understand this we an illustration can be discussed. Suppose that D, an occupier, negligently omits to bring a dangerously unstable fence on his property into repair. During a ferocious storm the fence collapses onto his neighbour’s (P’s) house. P sues D in negligence. D relies on the defence of Act of God and brings unchallenged expert evidence to show that the storm was so fierce that even a sturdy fence would have given way. In pleading act of God, D is not denying fault. He is denying that his fault caused P’s damage. This is a way in which the defence of Vis Major can be used. The essential conditions that the defendant needs to prove to be able to successfully use the defence of Act of God are as follows.

Firstly, it is important that the event that occurred was due to the forces of nature or unnatural circumstances. The event should be proved to be in excess of the normal standards. So only in cases of heavy torrential rainfall or natural disasters like earthquakes, tsunami etc this defence can be invoked. A regularly goes to a park and gets injured one rainy day when a branch accidentally falls on him. The park authorities cannot use the defence of act of god as the rainfall was normal and they were negligent in not maintain the park during the monsoons when it is reasonably foreseeable that the trees need more maintenance during the rains to avoid such an event from occurring.

In the case of Nichols v. Marshland] the defendant has a number of artificial lakes on his land. Unprecedented rain such as had never been witnessed in living memory caused the banks of the lakes to burst and the escaping water carried away four bridges belonging to the plaintiff. It was held that the plaintiff’s bridges were swept by act of God and the defendant was not liable.

In another case Ryde vs. Bushnell (1967), Sir Charles Newbold observed, “Nothing can be said to be an act of God unless it is an occurrence due exclusively to natural causes of so extraordinary a nature that it could not reasonably have been foreseen and the result avoided”.

It is also important to prove that the defendant had no knowledge or could not have done anything about the event to try and reduce the damages. As set out in Tennant v. Earl of Glasgow “Circumstances which no human foresight can provide against, and of which human prudence is not bound to recognize the possibility, and which when they do occur, therefore, are calamities that do not involve the obligation of paying for the consequences that may result from them” fall under the category of Act of God.

Greenock Corp. v. Caledonian Railway Co. contrasts with the decision in Nichols. The House of Lords criticised the application of the defence in Nichols v. Marshland. In this case, the Corporation obstructed and altered the course of a stream by constructing a padding pool for children. Due to rainfall of extraordinary violence which would normally have been carried away by the stream overflowed and caused damage to the plaintiff’s property. It was held that rainfall was not an Act of God. The House of Lords followed Rylands in holding that a person making an operation for collecting and damming up the water of a stream must so work as to make proprietors or occupants on a lower level as secure against injury as they would have been had nature not been interfered with. Nichols was further distinguished on two bases: the escape in Nichols was from a reservoir rather than a natural stream, and a jury in Nichols found the flood was due to an act of God. There had been ‘no negligence in the construction or maintenance of the reservoirs,” and “the flood was so great that it could not reasonably have been anticipated’.

In the case of Blyth v. Birmingham Water Works Co the defendants had constructed water pipes which were reasonably strong enough to withstand severe frost. There was an extraordinarily severe frost that year causing the pipes to burst resulting in severe damage to the plaintiff’s property. It was held that though frost is a natural phenomenon, the occurrence of an unforeseen severe frost can be attributed to an act of God, hence relieving the defendants of any liability. In the Indian case of Ramalinga Nadar v. Narayana Reddiar, the plaintiff had booked goods with the defendant for transportation. The goods were looted by a mob, the prevention of which was beyond control of defendant. It was held that every event beyond control of the defendant cannot be said Act of God. It was held that the destructive acts of an unruly mob cannot be considered an Act of God.